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15-P-893 Appeals Court
ZONING BOARD OF APPEALS OF HANOVER vs. HOUSING APPEALS
COMMITTEE & another.1
No. 15-P-893.
Plymouth. May 9, 2016. - August 29, 2016.
Present: Agnes, Massing, & Kinder, JJ.
Housing. Zoning, Housing appeals committee, Comprehensive
permit, Low and moderate income housing. Administrative
Law, Agency's interpretation of regulation, Regulations.
Municipal Corporations, Fees.
Civil action commenced in the Superior Court Department on
March 11, 2014.
The case was heard by William F. Sullivan, J., on a motion
for judgment on the pleadings.
Jonathan D. Witten (Barbara M. Huggins with him) for the
plaintiff.
Paul N. Barbadoro for Hanover Woods, LLC.
Bryan F. Bertram, Assistant Attorney General, for Housing
Appeals Committee.
MASSING, J. Defendant Hanover Woods, LLC (developer),
filed an application with the plaintiff zoning board of appeals
1
Hanover Woods, LLC.
2
of Hanover (board) for a comprehensive permit to build a 152-
unit mixed-income housing project. Considering the board's
filing fee to be unreasonable, however, the developer paid only
what it unilaterally determined to be a reasonable filing fee.
Deeming the application incomplete, the board did not accept it
for filing. By the time the developer paid the remainder of the
fee, six weeks later, the town had qualified for a safe harbor
under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23
(act), effectively giving the board unreviewable discretion to
deny the developer's permit.
Nonetheless, the defendant Housing Appeals Committee (HAC)
ultimately ordered the board to issue a comprehensive permit to
the developer for a 200-unit project. The board appeals from a
judgment of the Superior Court affirming the HAC's order.
Because we conclude that the HAC erred in determining that the
developer's application was complete on the date of its
incomplete submission, rather than on the date the filing fee
was paid in full, we reverse.
Background. On October 22, 2009, the developer filed an
application for a comprehensive permit for a project to be
called Woodland Village, consisting of 152 units to be offered
for sale, as well as parking spaces and other site improvements
on a twenty-four acre parcel of land in Hanover (town). Thirty-
eight of the units, or twenty-five percent, were designated to
3
be affordable units. Under the board's fee schedule, the filing
fee for a project of that size was $250 per housing unit, or
$38,000.
Accompanying its application, the developer included a
check for $8,500 with a letter of explanation signed by John J.
Sullivan, the developer's manager. In his letter, Sullivan
asserted that the $38,000 fee was "inconsistent" with the act
and the applicable regulations, which require reasonable fees.
Sullivan stated, "The applicant considers this fee
unreasonable." He claimed that a reasonable filing fee would be
$2,500, based on "the fee imposed on a traditional project
pending before the planning board." He added "a $6,000 initial
consultant review deposit," attaching a number of conditions to
the board's use of the deposit.
In a letter dated November 3, 2009, the board informed the
developer that its application was incomplete and would not be
accepted for filing until the board received the required fee.
The developer responded in a letter dated December 3, 2009.
Asserting that it had filed "a complete application, which
included an appropriate filing fee," but that the board's
position left it "in the untenable position of either appealing
the [b]oard's denial of its application or paying an additional
$30,000 [sic] to allow the merits of its proposal to be heard,"
the developer "determined to advance the [b]oard's fee under
4
protest." It enclosed a check for $29,500, reserving its rights
"with respect to any future challenge of [the board's]
comprehensive permit filing fee or with respect to the
completeness of [the developer's] application to the [b]oard
filed on October 22, 2009." The developer added, "Having
established an October 22, 2009, filing date, [it] is willing to
accommodate the [b]oard by voluntarily extending the deadline
for the [b]oard to open a public hearing on this matter until
thirty days from the date of this letter."
Meanwhile, on October 29, 2009, the board had approved a
comprehensive permit for an unrelated, sixty-six unit affordable
housing project called Barstow Village. All of the units were
to be made available to income-qualified seniors at below-market
rates. On December 1, 2009, as a result of the Barstow Village
approval, the Department of Housing and Community Development
(DHCD) certified that the town was in compliance with its
"Housing Production Plan" under 760 Code Mass. Regs.
§ 56.03(4)(f) (2008).2 The certification was made effective as
of the date of the Barstow Village approval, October 29, 2009,
for a two-year period ending October 28, 2011. The
certification of compliance established a regulatory safe
2
All regulatory citations in this opinion are to the
version of 760 Code Mass. Regs. §§ 56.01-56.08 as amended in
2008. The subsequent, and still current, version of the
regulations is the 2012 version. None of the language we quote
from the 2008 regulations appears to have been altered in 2012.
5
harbor, effectively making any decision by the board to deny a
comprehensive permit application made during that period
unreviewable by the HAC. See discussion infra.
The board informed the developer of the certification and
the resulting safe harbor in a letter dated December 3, 2009
(which the developer did not receive until after it mailed its
own December 3 letter discussed above). The board explained,
"If or when you decide to submit a complete Comprehensive
Permit application for 'Woodland Village' to this board for
acceptance (see our letter of November 3rd, 2009), please
be advised that the board may -- at its discretion, and
upon review of your project -- consider that a denial of
the permit or the imposition of conditions or requirements
would be 'Consistent with Local Needs.'"
On December 17, 2009, the developer filed an interlocutory
appeal with the HAC challenging the reasonableness of the filing
fee and the board's intention to consider the developer's
application with the benefit of the safe harbor protection. See
760 Code Mass. Regs. § 56.03(8)(c). In a decision dated June
21, 2010, a three-member panel of the HAC3 found the $38,000
filing fee to be reasonable. However, the panel further
determined that the board could not invoke the safe harbor
protection because the developer's application, though lacking
the full filing fee, should have been considered filed as of
October 22, 2009.
3
The HAC is a five-member body within DHCD. See G. L.
c. 23B, § 5A.
6
Complying with the HAC's interlocutory decision, the board
then proceeded on the developer's application, holding public
hearings over fourteen sessions concluding on July 19, 2011. On
September 18, 2011, the board granted the developer a
comprehensive permit for the 152-unit, for-sale project, subject
to a number of conditions. Following the board's approval, the
developer filed an appeal with the HAC challenging certain
conditions relating to the site.
While the appeal was pending, on December 9, 2011, the
developer filed a "Notice of Change in Applicant's Proposal"
with the HAC. See 760 Code Mass. Regs. § 56.07(4)(a). It
requested, among other changes, an increase in the number of
units from 152 to 200, and a change in the ownership structure
of the development from for-sale condominiums to rental units.
The HAC presiding officer found that the requested changes were
"substantial" and remanded the matter to the board for further
review. See ibid.
On June 28, 2012, the board denied the proposed changes.
The developer appealed that determination to the HAC. In a
decision dated February 10, 2014, the HAC ordered the board to
issue a comprehensive permit for the 200-unit rental project.
The board sought judicial review, and on February 27, 2015, a
Superior Court judge, acting on cross motions for judgment on
7
the pleadings, ordered judgment for the defendants, affirming
the HAC's decision. The board appeals from the judgment.
Discussion. 1. Statutory and regulatory overview. The
act "is designed to facilitate the development of low and
moderate income housing in communities throughout the
Commonwealth." Zoning Bd. of Appeals of Holliston v. Housing
Appeals Comm., 80 Mass. App. Ct. 406, 413 (2011). "The
procedural path and applicable standards of review have been
'thoroughly canvassed in earlier opinions.'" Ibid., quoting
from Board of Appeals of Woburn v. Housing Appeals Comm., 451
Mass. 581, 582 (2008). We summarize only the aspects of the act
relevant to this appeal.
"A developer may appeal a board's denial of an application
for a comprehensive permit to the HAC." Eisai, Inc. v. Housing
Appeals Comm., 89 Mass. App. Ct. 604, 609 (2016), citing G. L.
c. 40B, § 22. However, the act permits municipalities to attain
certain safe harbors signifying that they are currently
providing their share of affordable housing. See Zoning Bd. of
Appeals of Wellesley v. Ardemore Apts. L.P., 436 Mass. 811, 815-
816 (2002); Taylor v. Housing Appeals Comm., 451 Mass. 149, 151-
152 (2008); G. L. c. 40B, § 20; 760 Code Mass. Regs. § 56.03(1).
For the period that a municipality is within one of these safe
harbors, the "HAC is without authority to order that board to
8
grant a comprehensive permit or to modify or remove conditions."
Taylor, supra at 152.4
One such safe harbor applies when "[DHCD] has certified the
municipality's compliance with the goals of its approved Housing
Production Plan [HPP], in accordance with 760 [Code Mass. Regs.
§] 56.03(4)." 760 Code Mass. Regs. § 56.03(1)(b). A
municipality with an approved HPP may request certification of
municipal compliance "if it has increased its number of SHI[5]
Eligible Housing[6] units in an amount equal to or greater than
4
See G. L. c. 40B, § 20 (definition of "Consistent with
local needs"); 760 Code Mass. Regs. § 56.02(a) (one meaning of
"Consistent with Local Needs" is that "one or more of the
grounds set forth in 760 [Code Mass. Regs. §] 56.03[1] have been
met"); 760 Code Mass. Regs. § 56.03(1) (stating, with respect to
five enumerated safe harbors, that "[a] decision by a Board to
deny a Comprehensive Permit, or . . . grant a Comprehensive
Permit with conditions, shall be upheld if one or more of the
following grounds has been met as of the date of the Project's
application"); 760 Code Mass. Regs. § 56.07(3)(a) ("[A]
determination that a municipality has satisfied one or more of
the grounds set forth in 760 [Code Mass. Regs. §] 56.03[1] . . .
shall be an irrebuttable presumption").
5
"Subsidized Housing Inventory (SHI) -- means the list
compiled by the [DHCD] containing the count of Low or Moderate
Income Housing units by city or town." 760 Code Mass. Regs.
§ 56.02.
6
"SHI Eligible Housing -- means, solely for the purposes of
760 [Code Mass. Regs. §] 56.03: (a) any unit of Low or Moderate
Income Housing; (b) such other housing units in a Project as may
be so defined under the [DHCD]'s guidelines; and (c) any other
housing unit as may be allowed under the [DHCD]'s guidelines,
provided that such housing unit is subject to a Use Restriction
and Affirmative Fair Marketing Plan, and regardless of whether
or not such unit received a Subsidy." 760 Code Mass. Regs.
§ 56.02.
9
its 0.50% production goal for that calendar year." 760 Code
Mass. Regs. § 56.03(4)(f). If DHCD certifies the municipality
as being in compliance with its HPP, the safe harbor takes
effect on the date the target was reached and remains effective
for either one or two years, depending on the percentage
increase. See ibid. The HAC must uphold a zoning board of
appeals decision on a comprehensive permit application if the
municipality's HPP certification is in effect "as of the date of
the Project's application." 760 Code Mass. Regs. § 56.03(1).
2. Review of HAC decision. In its interlocutory review of
the dispute between the developer and the board over the
reasonableness of the filing fee and the effective date of the
developer's application, the HAC panel determined that the
$38,000 filing fee was reasonable. However, on the question
"whether or not the developer's October 22, [2009,] submission
to the [b]oard of its application without the full filing fee
constitutes an application for the purposes of § 56.03(1)," the
panel concluded that "the developer's failure to pay the full
filing fee with the application did not invalidate the
application" and thus ruled that "[t]he [b]oard may not invoke
safe harbor protections."
The HAC has authority to entertain "motions concerning
sufficiency of the application under 760 [Code Mass. Regs.
§] 56.05(2)." 760 Code Mass. Regs. § 56.06(5)(b)(3). Here, the
10
HAC panel observed that the regulations and precedents allow
"flexibility with regard to the contents of a local
comprehensive permit application." Specifically, the first
paragraph of § 56.05(2),7 listing the items that normally
constitute "a complete description of the proposed Project,"
further states that "[f]ailure to submit a particular item shall
not necessarily invalidate an application." The panel reasoned
that because "[t]he same section of our regulations permits
[b]oards to require filing fees" (see § 56.05[2], second par.),
the failure to submit the full filing fee likewise does not
invalidate an application. The panel concluded, "Although such
a fee is in no sense optional, the regulatory language implies
that where there is an honest mistake or good faith disagreement
-- if the filing fee is inadvertently omitted, submitted in an
incorrect amount, or, as here, challenged by the developer --
the application is not invalid."
The panel's decision was contrary to the DHCD's
regulations. Under G. L. c. 40B, § 22, a decision of the HAC is
subject to review in accordance with G. L. c. 30A. "The
reviewing judge considers whether the HAC's decision was
arbitrary, capricious, lacking substantial evidence, or
otherwise contrary to the law, and whether the substantial
rights of any party have been prejudiced." Eisai, Inc., 89
7
See note 8, infra.
11
Mass. App. Ct. at 610, citing Zoning Bd. of Appeals of
Sunderland v. Sugarbush Meadow, LLC, 464 Mass. 166, 172 (2013).
See G. L. c. 30A, § 14(7).
"We interpret a regulation in the same manner as a statute,
and according to traditional rules of construction." Warcewicz
v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991).
"We ordinarily accord an agency's interpretation of its own
regulation considerable deference. However, this principle is
deference, not abdication, and courts will not hesitate to
overrule agency interpretations when those interpretations are
arbitrary, unreasonable, or inconsistent with the plain terms of
the regulation itself." Ibid. (citation omitted). See Nuclear
Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass.
196, 209 (1995) ("[T]he interpretation of statutory and
regulatory language and the validity of the agency's
interpretation of its own regulation . . . are questions of law,
appropriate for [a court's] resolution"); Board of Appeals of
Woburn v. Housing Appeals Comm., 451 Mass. at 590 (by
"brush[ing] aside the language of the governing statute and the
regulations of the [DHCD]," HAC "exceeded its authority").
The DHCD's regulations permit local zoning boards of
appeals to adopt local rules for the submission and review of
comprehensive permit applications. See 760 Code Mass. Regs.
§ 56.05(1). The regulations further outline the components of
12
an application. See 760 Code Mass. Regs. § 56.05(2), which we
reproduce at the margin.8 Depending on local practices, an
8
Title 760 Code Mass. Regs. § 56.05(2) reads in full as
follows:
"Elements of Submission. Filing Fees. The Applicant shall
submit to the Board an application and a complete
description of the proposed Project. Normally the items
listed below will constitute a complete description.
Failure to submit a particular item shall not necessarily
invalidate an application. The Board shall not require
submissions for a Comprehensive Permit that exceed those
required by the rules and procedures of Local Boards for
review under their respective jurisdictions.
"(a) preliminary site development plans showing the
locations and outlines of proposed buildings; the
proposed locations, general dimensions and materials
for streets, drives, parking areas, walks and paved
areas; and proposed landscaping improvements and open
areas within the site. . . . ;
"(b) a report on existing site conditions and a
summary of conditions in the surrounding areas . . . ;
"(c) preliminary, scaled, architectural
drawings. . . . ;
"(d) a tabulation of proposed buildings by type, size
(number of bedrooms, floor area) and ground coverage,
and a summary showing the percentage of the tract to
be occupied by buildings, by parking and other paved
vehicular areas, and by open areas;
"(e) where a subdivision of land is involved, a
preliminary subdivision plan;
"(f) a preliminary utilities plan showing the proposed
location and types of sewage, drainage, and water
facilities, including hydrants;
"(g) the Project Eligibility letter, showing that the
Applicant fulfills the requirements of 760 [Code Mass.
Regs. §] 56.04(1);
13
application can include two or three components. Under the
first paragraph of § 56.05(2), "[t]he Applicant shall submit to
the Board an application and a complete description of the
proposed Project." The regulations do not define or describe
the contents of the "application" document. The "items" that
"constitute a complete description" appear in an indented list
immediately under the first paragraph of § 56.05(2). With
respect to these items, the first paragraph further states,
"Failure to submit a particular item shall not necessarily
invalidate an application." 760 Code Mass. Regs. § 56.05(2).
The second paragraph of § 56.05(2) provides for the third
component of an application package:
"The Board may require the payment of a reasonable
filing fee with the application, if consistent with
subdivision, cluster zoning, and other fees reasonably
assessed by the municipality for costs designed to defray
the direct costs of processing applications, and taking
into consideration the statutory goal of [G. L.] c. 40B,
§§ 20 through 23 to encourage affordable housing
development."
"(h) a list of requested Waivers."
"The Board may require the payment of a reasonable
filing fee with the application, if consistent with
subdivision, cluster zoning, and other fees reasonably
assessed by the municipality for costs designed to defray
the direct costs of processing applications, and taking
into consideration the statutory goal of [G. L.] c. 40B,
§§ 20 through 23 to encourage affordable housing
development."
14
The HAC panel erred in applying to filing fees the language
concerning "[f]ailure to submit a particular item" of "a
complete description of the proposed Project." As indicated by
the title of § 56.05(2) -- "Elements of Submission. Filing
Fees." -- the project description and the filing fee are
separate aspects of the comprehensive permit application. While
the language of the regulation admits some flexibility regarding
the items that constitute a complete project description, this
language does not spatially or logically encompass the filing
fee, which appears in a separate paragraph.
We are mindful that the intent of the act is to promote the
continued development of affordable housing and that the act and
its implementing regulations "must be construed in a manner that
effectuates [that] intent." Board of Appeals of Hanover v.
Housing Appeals Comm., 363 Mass. 339, 354 (1973). Moreover, the
paragraph pertaining to filing fees states that the
reasonableness of the fee is to be determined by "taking into
consideration the statutory goal of [the act] to encourage
affordable housing development." 760 Code Mass. Regs.
§ 56.05(2). Accordingly, we "should be slow to decide that a
public board has acted unreasonably or arbitrarily and should
search for some ground which reasonable [people] would regard as
a proper basis for the agency's action." Navy Yard Four
Assocs., LLC v. Department of Envtl. Protection, 88 Mass. App.
15
Ct. 213, 223 (2015), quoting from Fioravanti v. State Racing
Commn., 6 Mass. App. Ct. 299, 302 (1978). We detect no such
grounds for the HAC's decision here.
Although the regulations are silent with respect to the
effective date of an application to a local zoning board of
appeals for a comprehensive permit filed without payment of the
full fee, they do address the necessity of paying the filing fee
in an appeal to the HAC: "A fee shall be paid by the appellant
upon the filing of the initial pleading . . . . Fees shall be
payable, in full, . . . upon the filing of appeals . . . . No
initial pleading will be accepted for filing without the minimum
fee." (Emphases supplied.) 760 Code Mass. Regs. § 56.06(4)(f).
This section of the regulations underscores the arbitrary nature
of the HAC's conclusion that, unlike the HAC itself, zoning
boards of appeals must accept applications without full payment
of the filing fee. The HAC unreasonably applied a different
standard to the board.
Although the regulation governing appeals to the HAC allows
for the reduction of the filing fee when, "in the judgment of
the presiding officer, such action is warranted by special
circumstances and is in the public interest," the regulation
contemplates that an appellant must obtain such a reduction by a
timely-filed motion: "Any motion for reduction of fees shall be
filed with the initial pleading." Ibid. Here, the developer
16
did not file a motion with the board or even make a request for
a reduction of fees. Rather, the developer unilaterally
determined what it considered to be a reasonable fee. It did
not point to any special circumstances, hardship, or inability
to pay the full fee, nor did it contend that a reduction of fees
for its application would be in the public interest. Indeed,
the HAC ultimately determined that the fee was reasonable.
The filing of a fee with a comprehensive permit application
is not a minor detail. Contrast Albahari v. Zoning Bd. of
Appeals of Brewster, 76 Mass. App. Ct. 245, 251 n.6 (2010) (in
determining whether landowner had unconditional right to obtain
permit for single-family home prior to amendment of by-law,
where permit fee "is not required at any set time . . . the time
when [landowner] actually paid the fee is a minor detail that is
irrelevant to determining when her 'unconditional right' to the
building permit arose"). The fee is necessary to "defray the
direct costs of processing applications," 760 Code Mass. Regs.
§ 56.05(2), which can be substantial. "[T]he act establishes a
streamlined comprehensive permitting procedure, permitting a
developer to file a single application to the local zoning board
of appeals for construction of low or moderate income housing."
Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20,
29 (2006) (citation omitted). The filing of an application
triggers certain required, time-sensitive actions by the
17
municipality. "Within seven days of receiving a complete
application" (emphasis supplied), a zoning board of appeals must
notify all relevant local boards -- including the city council
or board of selectmen, the planning board, the conservation
commission, the historical commission, the board of health, the
water or sewer commission or district, and the fire, police, and
traffic departments9 -- of the application and invite their
participation as deemed necessary or helpful in review of the
project. 760 Code Mass. Regs. § 56.05(3). The board must open
a public hearing on the application "within 30 days of its
receipt of a complete application" (emphasis supplied), and the
hearing generally "shall not extend beyond 180 days from the
date of opening the hearing." Ibid. It is unreasonable, and
frustrates the purpose of the act, to require a municipality to
mobilize its resources to entertain a comprehensive permit
petition without full payment of the applicable filing fee.
A developer seeking a fee reduction or wishing to challenge
its reasonableness is not without recourse. Absent any guidance
in the regulations, however, the board is entitled to exercise
reasonable discretion in how it will entertain such requests or
challenges. See 760 Code Mass. Regs. § 56.05(1). It might, as
the HAC's appeals procedure allows, entertain motions filed with
9
See 760 Code Mass. Regs. § 56.02 (definition of "Local
Board").
18
the application package. However, absent a settled mechanism,
the developer who fails to pay the full filing fee with its
application does so at its peril. The safest procedure is to
pay the full fee while simultaneously requesting a reduction,
which can be refunded if the challenge is successful. See
Sunderland, 464 Mass. at 189-191 (HAC ordered zoning board of
appeals to repay $10,000 portion of filing fee to applicant).
This procedure applies in many familiar settings. For example,
"[a]s a condition precedent for the [Appellate Tax] Board's
jurisdiction to hear the appeal [from the assessors' refusal to
abate a tax], the person must first pay the specified sum of the
assessed tax." William B. Rice Eventide Home, Inc. v. Assessors
of Quincy, 69 Mass. App. Ct. 867, 871 (2007), citing G. L.
c. 59, §§ 64, 65. See Boston Five Cents Sav. Bank v. Assessors
of Boston, 313 Mass. 762, 770-771 (1943) (same).10 See also
Choate v. Assessors of Boston, 304 Mass. 298, 303 (1939) ("The
prompt payment of taxes is necessary for the proper
administration of government. There are instances where the
payment of the tax is a condition precedent to seeking or
securing an abatement"); American Trucking Assns., Inc. v.
10
A person appealing to the Appellate Tax Board "who claims
to be unable presently to pay the amount of tax remaining
unpaid" may file a motion to be excused from paying the balance,
but must do so "on or before the last date for payment of said
tax without incurring interest." G. L. c. 59, § 65B, as
appearing in St. 1975, c. 677, § 3.
19
Secretary of Admin., 415 Mass. 337, 349-350 (1993) ("most
common" remedy for imposition of State tax later found to be
unconstitutional "is refund of the fees paid during the
contested tax period"); Patriots Resorts Corp. v. Register of
Deeds for the County of Berkshire, N. Dist., 71 Mass. App. Ct.
114, 121 (2008) (plaintiff entitled to a refund for excess
filing fees collected based on erroneous interpretation of
statute specifying fees for recording documents); G. L. c. 152,
§ 11A(2) (in workers' compensation case, party appealing
conference order based on medical issues must file fee to defray
cost of independent medical examination, to be refunded if party
prevails on appeal). Cf. Big D Carpets, Inc. v. The Welch
Group, Inc., 37 Mass. App. Ct. 312, 314 (1994) (under
Mass.R.Civ.P. 3, as amended, 385 Mass. 1215 [1982], "all that is
now required, in the usual case, to commence a civil action and
vest the court with jurisdiction is to file the complaint in
court with the required entry fee").
Conclusion. The HAC's determination that the developer's
application was filed as of October 22, 2009, was arbitrary and
inconsistent with DHCD regulations. See G. L. c. 30A, § 14(7).
The board did not err in considering the application to have
been filed on the date it received the full fee from the
developer. The board was therefore entitled to consider the
developer's application with the benefit of the safe harbor that
20
existed under 760 Code Mass. Regs. § 56.03(1)(b) on the latter
date. The judgment of the Superior Court affirming the HAC's
decision ordering the board to issue a comprehensive permit for
the 200-unit proposal is reversed. A new judgment shall enter
reversing that decision, vacating the HAC's interlocutory
decision as to the availability of safe harbor, and remanding
the matter to the board for further proceedings consistent with
this opinion.11,12
So ordered.
11
It is unclear whether the board, with the availability of
the safe harbor, would have denied the original application on
that basis without a local hearing. Under 760 Code Mass. Regs.
§ 56.03(1), "a Board may at its sole discretion elect to proceed
with the full local hearing, and ultimately to approve a
Comprehensive Permit, even though one or more of the [safe
harbor] grounds have been met." We consider the board to retain
this discretion on remand.
12
Our determination of the safe harbor question makes it
unnecessary to address the other issues argued by the parties,
some of which we touched upon recently in Eisai, Inc. v. Housing
Appeals Comm., 89 Mass. App. Ct. 604 (2016).